Title: Measuring source, affiliation, and permission likelihood of consumer confusion in trademark infringement litigation

Authors: Robert A. Peterson; Isabella M. Cunningham; Jeffrey A. Peterson

Addresses: Stuart Chair in Business Administration, McCombs School of Business, The University of Texas at Austin, Austin, TX 78712, 512 699 6520, USA ' Stan Richards Chair in Advertising and Public Relations Strategy, Moody College of Communication, The University of Texas at Austin, Austin, TX 78712, 512 471 8126, USA ' TFin and Associates, L.L.P., 3267 Bee Caves Road, Suite 107-137, Austin, Texas 78746, 512 577 1748, USA

Abstract: This boundary-spanning article addresses the measurement of 'likelihood of confusion' in trademark infringement litigation. Likelihood of confusion is the sine qua non of trademark infringement litigation and is typically measured by means of consumer surveys. After brief discussions of consumer confusion and the Lanham Act, the three traditional types of likelihood of confusion recognised under the Lanham Act - source confusion, affiliation confusion, and permission confusion are described, and two prominent survey approaches for measuring likelihood of confusion, 'Ever-ready' and 'Squirt, ' reviewed. Through a quantitative evaluation of existing likelihood of confusion surveys and an empirical experiment, various measurement issues are examined, and their implications considered. We document how existing measurement procedures can influence likelihood of confusion survey results, and especially how the attention accorded source confusion may inherently or unintentionally produce estimates of likelihood of confusion that understate overall confusion due to affiliation and/or permission likelihood of confusion. Suggestions for future research are discussed and an approach for measuring likelihood of confusion in trademark infringement litigation offered.

Keywords: Lanham Act; trademark infringement; likelihood of confusion.

DOI: 10.1504/IJADS.2024.137010

International Journal of Applied Decision Sciences, 2024 Vol.17 No.2, pp.182 - 205

Received: 10 Mar 2022
Accepted: 21 Sep 2022
Published online: 01 Mar 2024 *

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